Woolsey v. Tompkins — 23 Wend. 324

Majority

p. 323

*Woolsey and others vs. Tompkins and others.

Headnote

A certificate of a determination to lay out a road, is sufficiently conformable to the requirements of the act, if it state the termini of the road and its route, by courses and distances ; it is not necessary to specify the bounds of each course.

Where errors have occurred in the description of a road, in the order of judges reserving the determination of commissioners and laying out a road, it is competent to the judges after the filing of their order, to deposit in the town clerk’s office, a document correcting the errors, and such document will be considered as an amendment of the order; but the judges are not permitted to review and alter what they have done judicially. The making up of the certificate is a mere ministerial act.

Where authority is conferred by law upon three persons to do a public act, the concurrence of a majority is a valid execution of the power when all attend and take part in the transaction.

It, seems that if an error happen in the description of a road laid out, the officers laying out the same may be required by mandamus to file a new certificate, and give a description conformable to the facts of the case.

Error, on certiorari. The plaintiffs, commissioners of highways, of the town of Bedford, sued out a common law certiorari, calling upon the defendants, three of the judges of the county of Westchester, to send up for review, the proceedings had by them in reversing an order of the commissioners refusing to lay out a road, and in themselves laying out a road upon the original application made to the commissioners. The judges retained

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the proceedings had previous to the appeal made to them ; they then state the appeal, that they appointed a time and place for the hearing thereof, that they met according to such appointment, and ivere attended by the appellants and the commissioners of highways; that after viewing the route of the proposed road, the proceedings were adjourned until 28th Jane, 1836, when they again met, the parties interested being in attendance, and after hearing the proofs and allegations of the parties, two of the judges reversed the order of the commissioners, and proceeded to lay out the road as originally applied for, and fixed the route thereof, by visible monuments at each and every angle, thereof, and caused the same to be surveyed : which survey, they allege, was upon the route of the ‘road as [ *325 ] laid out by them ; that they made an order in, respect to the premises, and that the courses and distances set forth therein were believed and intended to be in accordance with the route of the road actually laid out by them. They then further certify, that some time after having caused such order to be filed, they were informed that the courses and distances of the survey of the road, as stated in the order, did not in all respects correspond with, the rute oftherodds actually laid laid out by them, they on the 5 th September, 1837, executed an instrument in writing, and caused the same to be filed in the town clerk’s office, of the town of. Bedford : and they certify that the monuments mentioned in the paper last referred to, designating the route of the road are those fixed upon and-established by them, when they laid out the road, and caused the same to be surveyed, and to which monuments they intended the survey to conform, and .supposed and believed that it did so conform.

The order made in pursuance of the adjudication of 28th June, 1836, bears date 7th July, 1836, which, after reciting the appeal and proceedings had thereon, states that the judges thereby order adjudge and determine “ that a highway be and the same is hereby laid out, pursuant to the application of the said Hallock, according to a survey thereof, which we have caused to be made as follows, to wit: Beginning at a bar post norihivesterly of John Hallock’s mill, in Bedford, and running north 37 degrees and 15 minutes west 7 chains and 22 links, thence,” &c., ( giving numerous courses and distances,) the last course and distance terminating at the road easterly of William Silkman’s shop, or at the division line between Bedford and South Salem. The paper filed on the 5th September, 1837, also bears date on the 7th July, 1836. In it the judges, after stating the appeal and the laying out of the road, certify that they caused their order first above mentioned, to be filed without particularly enumerating and specifying the bound' aries and monuments of each respective course, and that now “ for the pur' pose of more clearly and distinctly specifying and setting forth the *courses and distances and respective boundaries and monu- [ *326 ] ments thereof, we do order, adjudge, cause and determine, that the

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following specified and described boundaries and monuments were set and put up by us, at each respective course and distance, and intended to be run to and described by the survey now on file, in the office of the clerk of the town of Bedford aforesaid, in maimer and form following, to wit: “ Beginning at the termination of the highway leading to John Halloclc’s mill, at a bar post north-easterly of John Hallock’s mill, and running north 37 degrees 15 minutes west, 7 chains and 22 links, to a stake near a brook, thence,” &c., going on and terminating each distance by a stake, or some other object, and correcting several clerical mistakes, such as northeasterly for northwesterly, and 48| degrees for 581 degrees and the like. Accompanying this paper was a direction from the judges to the town clerk to attach'it to the original order bearing date 7th July, 1836.

M. T. Reynolds, for the plaintiffs in error.

S. Stevens, for the defendants in error.

By the Court, It abundantly appears from the return that the three judges met and deliberated upon the proceedings had under the appeal, and the decision, therefore, of the two is valid, and binding. It has been decided by this court, as a general principle, that where an authority is conferred upon three, a majority may act. Although the written order or determination, does not recite that the third was present and participated in the proceeding, or had notice and refused, the court will presume the fact, till the contrary is shown. 17 Johns. R. 461. 9 Wendell, 17.

The first certificate of the judges in laying out the road, I am of opinion, was a substantial compliance with the statute in form. The description required is by “ routes and bounds, and by courses and distance.” 1 R. S. 511, § 67, 2d ed. The two termini are here given, together [ *327 ] with the courses and distances, and several intermediate *bounds. There can be no possible difficulty in tracing the route as marked upon the ground, or finding and marking it anew from the description given. Though it may be necessary to fix a bound at the end of each course, upon the ground (which was done here) as a guide to the officers in opening and working the road, it would be useless to specify them in the certificate ; they must usually disappear when the road is opened. If the termini are given with the courses and distances, the skill of a surveyor can at any time determine the route. This description affords durable record evidence.

Some trifling errors have occured in the description, as given in the first certificate, comparing it with the amended one ; but the rule de minimus, &c. might, I think, be justly applied to most of them. The one at the starting point of the road is probably material, and might lead upon the courses and distances as given to the location of a route different from that laid out, and the remark is perhaps applicable to one or two of the courses

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and distances. But I perceive no objection to the amendment made. The reversal of the order of the commissioners and determination to lay out the road were quasi judicial acts, and could not be reviewed or altered by the judges ; but maJdng up the record of the proceedings was ministerial. It would be strange if a slip in doing so must be fatal. In the administration of justice in courts of record, it is a matter of course to amend clerical' errors; indeed, there is scarcely a paper or record in the proceedings there, but at this day is amendable. Absolute accuracy is beyond human care and power; and the most intolerable .confusion and mischief would ensue a denial of this right there, or in all like proceedings. It is argued that it would be dangerous to allow these officers to overhale and alter ¿he records : but some confidence must necessarily be reposed in- them and all other officers ; we are not to deny them the exercise of a necessary power in the discharge of their duties, for fear they may abuse it. No such suspicion is indulged when they are sitting in their own court, and why should it be indulged here. Besides, I do not see that any useful or different end would be attained *by refusing to amend arid setting aside the certificate. [ *328 ] The adjudication reversing the order of the commissioners and the order of the judges laying out the road' would remain valid and the judges might be required to make up and file a new record.

But there is another view of the case that, in my judgment, is decisive in favor of the defendants in error. If the amendment is to be regarded as made without authority, and rejected, then the first certificate stands alone. The second is but blank paper entitled to no more consideration than if made by strangers- to the proceedings, arid thrust into the town clerk’s office. If this be so, then there is nothing before us impeaching the correctness or regularity of the first order. It is only by comparing it with the amendment, that any discrepancy from the actual route can be detected. No such admission is made by the judges, except as.derived from this comparison.

I am, however, satisfied the amendment should be sustained, and the proceedings affirmed on that ground.

Proceedings affirmed.